Delhi District Court
Shanta Rani vs Govt. Of Nct Of Delhi And Ors on 30 September, 2024
Shanta Rani Vs. Govt. Of NCT of Delhi & Ors.
IN THE COURT OF DISTRICT JUDGE-02, SOUTH
DISTRICT, SAKET COURTS, NEW DELHI
Presiding Judge: Dr. Yadvender Singh
PC No. 5935/2016
Filing No. 5224/2012
CNR No. DLST01-000335-2012
In the matter of
Shanta Rani
w/o Sh. Gulshan Sadana
R/o D-41, 2nd Floor,
Moti Nagar-110015 ...Petitioner
Versus
1. Govt. of NCT of Delhi
2. Kamal Arora,
S/o Late Asa Ram
R/o B-99, Dayanand Colony,
Lajpat Nagar-IV,
New Delhi-110024.
3. Mrs. Renu Arora,
W/o Late Sh. M.L. Arora,
R/o C-186, 2nd Floor,
New Moti Nagar-110015.
PC No. 5935/2016
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Shanta Rani Vs. Govt. Of NCT of Delhi & Ors.
4. Mrs. Poonam Bhatia,
R/o 4/9, Kalkaji Extension,
Near Kalkaji Police Station,
New Delhi-110019.
5. Mrs. Ritu Sikka,
R/o 4/9, Kalkaji Extension,
Near Kalkaji Police Station,
New Delhi-110019.
6. Mrs. Anjali Lalwani,
R/o 4/9, Kalkaji Extension,
Near Kalkaji Police Station,
New Delhi-110019.
7. Mr. Deepak Lalwani,
R/o 4/9, Kalkaji Extension,
Near Kalkaji Police Station,
New Delhi-110019.
8. Mrs. Manisha Nagpal,
R/o WZ-1161, Rani Bagh,
New Delhi-110034.
9. Ms. Ginny Arora,
R/o C-186, 2nd Floor,
New Moti Nagar,
New Delhi-110015. ...Respondents
Date of Institution : 05.03.2012
Date of reserving the judgment : 05.09.2024
Date of pronouncement : 30.09.2024
Decision : Dismissed
PC No. 5935/2016
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Shanta Rani Vs. Govt. Of NCT of Delhi & Ors.
PETITION UNDER SECTION 276 OF THE INDIAN
SUCCESSION ACT, 1925 FOR GRANT OF PROBATE IN
RESPECT OF THE REGISTERED WILL DATED 25.03.1997
EXECUTED BY SMT. KRISHNA
JUDGMENT
1. The present petition has been filed by the petitioner under Section 276, the Indian Succession Act, for obtaining Probate in respect of a registered Will duly executed by late Smt. Krishna, W/o Late Sh. Asa Ram, R/o B-99, Dayanand Colony, Lajpat Nagar-IV, New Delhi (since deceased) (hereinafter referred to as 'testatrix'). The case of the petitioner, as per the petition, is as under:-
1.1. That the petitioner is the law abiding citizen of India and is residing at D-41, 2nd Floor, Moti Nagar New Delhi-110015.
1.2. That respondent No. 2 is brother of the petitioner and is residing at B-99, Dayanand Colony, Lajpat Nagar-
IV, New Delhi-110024 and respondent No. 3 is wife of brother of the petitioner and is residing at C-186, 2 nd Floor, New Moti Nagar-110015.
1.3. That mother of petitioner Mrs. Krishna, w/o Late Sh. Asa Ram, r/o B-99, Dayanad Colony, Lajpat Nagar-IV, New Delhi, during her life time executed a Will on PC No. 5935/2016 Page 3 of 47 Dr. Yadvender Singh /DJ-02/South/Saket/ND/30.09.2024 Shanta Rani Vs. Govt. Of NCT of Delhi & Ors.
25.03.1997, in favour of the petitioner herein which is duly registered on 25.03.1997, in the office of the Registrar vide registration no.3561, additional book no. III volume no. 713, on page no.52-53.
1.4. That mother of petitioner Mrs. Krishna, w/o Late Sh. Asa Ram, r/o B-99, Dayanad Colony, Lajpat Nagar-IV, New Delhi, died at New Delhi on 26.07.2011 at her residence, leaving behind the petitioner, her son Mr. Kamal Arora, (Respondent No. 2 herein) and Mrs. Renu Arora (Respondent No. 3 herein, wife of Late Sh. M. L. Arora, deceased son of the late Mrs. Krishna). 1.5. That through the said Will dated 25.03.1997, the petitioner exclusively inherited the immovable property comprising of entire first floor with fittings and fixtures installed thereon the said property alongwith proportionate share of lease hold rights in the land underneath of the property bearing no. B-99, Dayanad Colony, Lajpat Nagar- IV, New Delhi-110024.
1.6. That the Will dated 25.03.1997 of the deceased was her last Will with respect to first floor of the property bearing number no. B-99, Dayanad Colony, Lajpat Nagar- IV, New Delhi-110024 and testament and was duly executed by her while she was in good and sound health.
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That the Will was signed by the deceased in the presence of witness, whose name and signature appears at foot of the Will. That the witnesses have signed the said Will in presence of the testator.
1.7. That by virtue of the said Will, the deceased Late Mrs. Krishna appointed the petitioner as the sole beneficiary, administrator and executor of the said Will and inter alia bequeathed the immovable property comprising of entire first floor with fittings and fixtures installed therein, of the property bearing number no. B-99, Dayanad Colony, Lajpat Nagar-IV, New Delhi in favour of the petitioner.
1.8. That the property bearing no. B-99, Dayanad Colony, Lajpat Nagar- IV, New Delhi is a freehold property and stands in the name of late Mrs. Krishna vide Conveyance Deed dated 19.07.2005 and the said Conveyance Deed is registered vide registration no. 5173, Book no. 1, Volume no. 551 Page no. 10-11, on 26.10.1995.
1.9. That properties of the deceased detailed in the present petition are situated within the jurisdiction of this Court and the present court has jurisdiction to entertain and try the present petition.
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1.10. That to the best knowledge and belief of the petitioner, no petition for grant of probate has been made in any court of law for probate of the Will dated 25.03.1997, executed by mother of the petitioner. 1.11. That there is no legal impediment for grant of probate to the petitioner. Hence, the present petition has been filed with the following prayers:-
"(i) Grant a probate in favour of the petitioner on the basis of Will dated 25.03.1997 of the deceased Late Smt. Krishna, w/o Late Asa Ram.
(ii) Grant any other relief/s in favour of the petitioner and against the defendant which this Hon'ble Court deem fit and proper in the facts and circumstances of the present case."
2. No objection statement of respondent no. 2 was recorded on 25.05.2012.
3. Vide order dated 25.05.2012, the summons were directed to be issued to respondent no. 3 and citation was directed to be published in the newspaper for general public. The citation was published in the newspaper "The Statesman" dated 14.07.2012. Respondent no. 3 was served.
4. The petition is opposed by respondent No.3 i.e. wife of brother of the petitioner. Ld. Counsel for respondent No. 3 PC No. 5935/2016 Page 6 of 47 Dr. Yadvender Singh /DJ-02/South/Saket/ND/30.09.2024 Shanta Rani Vs. Govt. Of NCT of Delhi & Ors.
appeared and filed objections along with application u/o VII rule 11 CPC on 19.10.2012.
5. Objections / Written Statement on behalf of respondent no. 2 :-
5.1. That the petition under reply is most vicious, malafide and a dishonest attempt to grab the property and to oust the answering respondent as well as other legal heirs of Late Mr. Asa Ram from his estate. The property, which allegedly has been bequeathed by Late Smt. Krishna in favour of the petitioner, by no stretch of imagination is/ was capable of being bequeathed by Late Smt. Krishna as she was not the owner of the same. The said property was purchased by Late Mr. Asa Ram, from his own funds. It is further stated that Late Mr. Asa Ram died intestate and as such all the legal heirs were/are the joint owners of the property in question and by no stretch of imagination Late Smt. Krishna could have bequeathed the same to anyone. 5.2. That without prejudice to the above, it is stated that the present probate petition deserves to be dismissed as the same is contravention to Section 63 of the Indian Succession Act, 1925 as the same is not attested by two witnesses. The Will in question is attested by only one witness Sh. Praveen Kumar only.PC No. 5935/2016 Page 7 of 47 Dr. Yadvender Singh /DJ-02/South/Saket/ND/30.09.2024
Shanta Rani Vs. Govt. Of NCT of Delhi & Ors.
5.3. That the said probate petition is also in contravention to Section 278(b) of the Indian Succession Act, 1925, which requires all the legal heirs of the deceased to be impleaded as a party in a probate petition. It is stated that the petitioner has chosen not to implead all the legal heirs as a party in the present petition and hence the instant petition deserves to be dismissed/rejected on this ground itself.
5.4. It is stated that Late Mrs. Krishna was married to Late Asa Ram and from that wedlock four children were born:-
A. Asha Lalwani (since deceased) B. Shanta Rani (petitioner herein) C. M.L. Arora (since deceased) D. Kamal Arora (respondent no. 2 herein) 5.5. Mrs. Asha Lalwani has expired in the year 2007 and is survived by the following legal heirs-
1. Mrs. Poonam Bhatia (daughter)
2. Mrs. Ritu Sikka (daughter)
3. Mrs. Anjali Lalwani (daughter)
4. Mr. Deepak Lalwani (son) 5.6. Mr. M.L. Arora expired in the year 06.09.2011 and PC No. 5935/2016 Page 8 of 47 Dr. Yadvender Singh /DJ-02/South/Saket/ND/30.09.2024 Shanta Rani Vs. Govt. Of NCT of Delhi & Ors.
is survived by the following legal heirs-
1. Mrs. Renu Arora (wife) i.e. the Answering Respondent
2. Mrs. Manisha Nagpal (daughter)
3. Ms. Ginny Arora (daughter) 5.7. That the present probate petition has not been preferred in terms of the Delhi High Original Side Practice Directions as neither the verification is appropriate nor is the petition accompanied by an affidavit of the attesting witness and thus the present petition deserves to be dismissed/rejected on this ground.
5.8. That the mother-in-law of the answering respondent; Late Smt. Krishna was an illiterate lady and the Will in question has been made in English and has been typed and the same by no stretch of imagination can be called to be made by the deceased out of her own free will. Not only is this the only suspicious circumstance, but also there are various other surrounding circumstances which goes to show that the Will in question is not a genuine Will.
5.9. That the Will in question does not contain a narration of all the alleged properties and also does not mention about other legal heirs of the deceased and also PC No. 5935/2016 Page 9 of 47 Dr. Yadvender Singh /DJ-02/South/Saket/ND/30.09.2024 Shanta Rani Vs. Govt. Of NCT of Delhi & Ors.
does not mention why the deceased has left the entire first floor to the petitioner to the exclusion of the other legal heirs, when all throughout her lifetime the relationship between the answering defendant and her mother-in-law i.e. Late Smt. Krishna remained most cordial. The husband of the answering respondent expired on 06.09.2011 and all throughout his lifetime his relation with his mother was most cordial, therefore, there was no reason for Late Smt. Krishna to execute such a Will, to leave out the answering respondent's husband out of the property. These facts clearly show that the Will in question is not a genuine Will. It is the settled law of the land that in order to ascertain a free disposing mind free from extraneous considerations, the whole of the attending circumstances of the particular case are to be taken note of.
5.10. That without prejudice to the above it is stated that alongwith the present petition another petition seeking grant of probate of the Will dated 29.03.2003 has also been moved by one Mr. Kamal Arora i.e. the son of the deceased Smt. Krishna alleging that the deceased had left the basement, ground, and third floor of the property in her favour by virtue of the said Will. It is stated that both these Will have been set up by Mr. Kamal Arora and the PC No. 5935/2016 Page 10 of 47 Dr. Yadvender Singh /DJ-02/South/Saket/ND/30.09.2024 Shanta Rani Vs. Govt. Of NCT of Delhi & Ors.
petitioner herein Mrs. Shanta Rani, with a view to oust the other legal heirs from their share in the property. 5.11. That it is not understood as to why both the Wills were not executed on the same day and why one was executed in the year 1997 and the other one after a lapse of 6 years.
5.12. That it is also important to note that the Wills do not mention any thing about the movable properties of the deceased. The deceased had many gold, silver and diamond ornaments, but no account of the same has been given in any of the Wills.
5.13. That it is also note worthy that the Wills in question do not contain any recital about the bank accounts and the FDR that the deceased had in her name. The answering respondent has learnt from reliable sources that the petitioner along with Mr. Kamal Arora has misappropriated the said amount, the answering respondent reserves its right to take out appropriate proceedings qua the same. That the prayer made in the petition under reply is misconceived and the petition under reply deserves to be dismissed.
6. Replication alongwith reply to the application u/o VII Rule 11 CPC on behalf of petitioner was filed on 30.11.2012.
PC No. 5935/2016 Page 11 of 47 Dr. Yadvender Singh /DJ-02/South/Saket/ND/30.09.2024Shanta Rani Vs. Govt. Of NCT of Delhi & Ors.
7. Vide order dated 29.08.2013, application u/o VII rule 11 CPC was dismissed by Ld. Predecessor of this court. Vide the same order, application u/o I rule 10 CPC was allowed and amended memo of parties was taken on record.
8. No objection statements of respondent no. 4/ Smt. Varsha Bhatia @ Poonam Lalwani, respondent no. 5/ Smt. Ritu Sikka and respondent no. 6 Anjali Lalwani were recorded on 29.08.2013.
9. Vide order dated 10.07.2014, Ld. Predecessor of this court allowed the application u/s 151 CPC on behalf of respondents no. 8 & 9 and permission was granted to respondents no. 8 & 9 to adopt the objections filed by respondent no. 3.
10. Respondents no. 1 & 7 were proceeded ex-parte vide order dated 30.09.2014 of Ld. Predecessor of this court
11. On the basis of the record, following issues were framed vide order dated 01.04.2015: -
1. Whether the petitioner is entitled for probate as per Will dated 25.03.1997? OPP
2. Whether the Will is witnessed properly? OPP
3. Whether the Will in question is a genuine Will? OPP
4. Relief.
12. PETITIONER'S EVIDENCE:-
PC No. 5935/2016 Page 12 of 47 Dr. Yadvender Singh /DJ-02/South/Saket/ND/30.09.2024Shanta Rani Vs. Govt. Of NCT of Delhi & Ors.
12.1. The petitioner examined herself as PW-1. She tendered her evidence by way of affidavit which is Ex.
PW-1/A on 05.10.2015. She has relied upon the following documents: -
a) Registered Will dated 25.03.1997, Ex. PW-1/1;
b) Death certificate of late Smt. Krishan Arora, Ex. PW-1/2; and
c) Conveyance Deed dated 19.07.1995, Ex. PW-1/3.
PW-1 was cross examined at length on 07.04.2016 and 08.10.2016, by Ld. Counsel for respondents no. 3, 8 & 9 .
12.2. The petitioner examined Sh. Kamal Arora/ respondent no. 2 as PW-2. He tendered his evidence by way of affidavit, which is Ex. PW-2/A on 05.10.2015. PW-2 was cross examined at length on 04.01.2016 by Ld. Counsel for respondents no. 3, 8 & 9.
12.3. The petitioner also examined Sh. Praveen Kumar as PW-3 being an attesting witness. He tendered his evidence by way of affidavit, which is Ex. PW-3/A on 04.01.2017. PW-3 was cross examined at length on 12.01.2018 and 02.06.2018 by Ld. Counsel for respondents no. 3, 8 & 9.
12.4. The petitioner also examined Sh. Bharat Sanwaria, s/o Asha Ram, Record Keeper, Sub-Registrar-V, Mehrauli, PC No. 5935/2016 Page 13 of 47 Dr. Yadvender Singh /DJ-02/South/Saket/ND/30.09.2024 Shanta Rani Vs. Govt. Of NCT of Delhi & Ors.
New Delhi as PW-4 on 04.01.2017. He brought the summoned record pertaining to Will (Ex. PW-1/1) dated 25.03.1997 executed by Smt. Krishna, w/o Late Sh. Asa Ram. PW-4 was not cross examined by Ld. Counsel for respondents no. 3, 8 & 9.
12.5. The petitioner also examined Sh. Ashok Kumar Gupta as PW-5 being another attesting witness. He tendered his evidence by way of affidavit, which is Ex. PW-5/A on 21.03.2017. PW-5 was cross examined at length on 09.06.2017 and 12.01.2018 by Ld. Counsel for respondents no. 3, 8 & 9.
12.6. The petitioner also examined Sh. Gulshan Kumar as PW-6 on 02.06.2018. He tendered his evidence by way of affidavit, which is Ex. PW-6/A on 06.06.2018. PW-6 was cross examined at length on 06.06.2018 and 15.11.2018 by Ld. Counsel for respondents no. 3, 8 & 9.
13. Thereafter, the PE was closed vide order dated 15.11.2018.
14. RESPONDENTS EVIDENCE: -
14.1. On behalf of the respondents No. 3, 8 & 9, Ms. Gini Arora was examined as RW-1 who tendered her evidence by way of affidavit Ex. RW1-/A on 06.03.2019.
RW-1 was cross-examined at length by Ld. Counsel for PC No. 5935/2016 Page 14 of 47 Dr. Yadvender Singh /DJ-02/South/Saket/ND/30.09.2024 Shanta Rani Vs. Govt. Of NCT of Delhi & Ors.
the petitioner on 07.09.2019.
14.2. Respondents no. 3, 8 & 9 have also examined Smt. Renu Arora as RW-2 who tendered her evidence by way of affidavit Ex. RW-2A on 01.11.2022. RW-2 was cross- examined at length by Ld. Counsel for the petitioner on 01.11.2022 and 03.02.2023.
15. Vide order dated 03.02.2023, RE was closed on behalf of respondent no. 3. Thereafter vide order dated 22.03.2023, RE on behalf of respondents no. 8 & 9 was closed. Thereafter, the matter was fixed for final arguments.
Arguments and findings:
16. I have heard Ld. Counsel for the parties. I have also gone through material available on record.
17. Time now to deal with the issues.
2. Whether the Will is witnessed properly? OPP
3. Whether the Will in question is a genuine Will? OPP
18. Issue no. 2 & 3 are taken together as they are interconnected. Before discussing the matter on merits, it would be relevant to discuss the law relating to the execution and proof of Wills under the Indian Succession Act and the Evidence Act. The expression "Will" is defined by Section 2(h) of Indian Succession Act, 1925 to mean the legal declaration of PC No. 5935/2016 Page 15 of 47 Dr. Yadvender Singh /DJ-02/South/Saket/ND/30.09.2024 Shanta Rani Vs. Govt. Of NCT of Delhi & Ors.
"the intention" of a testator with respect to his property "which he desires to be carried into effect after his death". Section 59 of Indian Succession Act, 1925 governs the capability of a person to make a Will. It reads as under:
"59. Person capable of making Wills --- Every person of sound mind not being a minor may dispose of his property by Will. "Explanation1.-A married woman may dispose by Will of any property which she could alienate by her own act during her life. "Explanation 2.--- Persons who are deaf or dumb or blind are not thereby incapacitated for making a Will if they are able to know what they do by it.
"Explanation 3.--- A person who is ordinarily insane may make a Will during interval in which he is of sound mind. "Explanation 4.--- No person can make a Will while he, is in such a state of mind, whether arising from intoxication or from illness or from any other cause, that he does not know what he is doing."
19. Section 59 thus declares that every person (not being a minor) "of sound mind" may dispose of his property by Will. The second explanation appended to the said provision clarifies that persons who are "deaf or dumb or blind" are not incapacitated by such condition for making a Will "if they are able to know what they do by it". The third explanation makes the basic principle clear by adding that even a person who is "ordinarily insane" may make a Will during the interval in which "he is of sound mind". The fourth explanation renders it even more lucent by putting it negatively in words to the effect that it the person "does not know what he is doing" for any reason (such as intoxiation, illness or any other such cause) he PC No. 5935/2016 Page 16 of 47 Dr. Yadvender Singh /DJ-02/South/Saket/ND/30.09.2024 Shanta Rani Vs. Govt. Of NCT of Delhi & Ors.
is incompetent to make a Will. The focal pre-requisite, thus, is that at the time of expressing his desire vis-a-vis the disposition of the estate after his demise he must know and understand its purport or import.
20. The execution of an unprivileged Will, as the case at hand relates to, is governed by Section 63 of the Indian Succession Act, 1925, which reads as under:
"63 Execution of unprivileged Wills. --Every testator, not being a soldier employed in an expedition or engaged in actual warfare or an airman so employed or engaged, or a mariner at sea, shall execute his Will according to the following rules:
"(a) The testator shall sign or shall affix his mark to the Will, or it shall be signed by some other person in his presence and by his direction.
"(b) The signature or mark of the testator, or the signature of the person signing for him, shall be so placed that it shall appear that it was intended thereby to give effect to the writing as a Will. "(c) The Will shall be attested by two or more witnesses, each of whom has seen the testator sign or affix his mark to the Will or has seen some other person sign the Will, in the presence and by the direction of the testator, or has received from the testator a personal acknowledgment of his signature or mark, or the signature of such other person; and each of the witnesses shall sign the Will in the presence of the testator, but it shall not be necessary that more than one witness be present at the same time, and no particular form of attestation shall be necessary."
21. As per the mandate of clause (c), a Will is required to be attested by two or more witnesses each of whom should have seen the testator sign or put his mark on the Will or should have seen some other person sign the Will in his presence and by the PC No. 5935/2016 Page 17 of 47 Dr. Yadvender Singh /DJ-02/South/Saket/ND/30.09.2024 Shanta Rani Vs. Govt. Of NCT of Delhi & Ors.
direction of the testator or should have received from the testator a personal acknowledgment of his signature or mark, or of the signature of such other person. The Will must be signed by the witness in the presence of the testator, but it is not necessary that more than one witness should be present at the same time. No particular form of attestation is necessary. Thus, there is no prescription in the statute that the testator must necessarily sign the Will in the presence of the attesting witnesses only or that the attesting witnesses must put their signatures on the Will simultaneously, that is, at the same time, in the presence of each other and the testator. In H. Venkatachala Iyengar v. B.N. Thimmajamma and Others:AIR 1959 SC 443 Hon'ble Supreme Court of India has held that a Will is produced before the court after the testator who has departed from the world, cannot say that the Will is his own or it is not the same. This factum introduces an element of solemnity to the decision on the question where the Will propounded is proved as the last Will or testament of the departed testator. Therefore, the propounder to succeed and prove the Will is required to prove by satisfactory evidence that
(i) the Will was signed by the testator; (ii) the testator at the time was in a sound and disposing state of mind; (iii) the testator understood the nature and effect of the dispositions; and PC No. 5935/2016 Page 18 of 47 Dr. Yadvender Singh /DJ-02/South/Saket/ND/30.09.2024 Shanta Rani Vs. Govt. Of NCT of Delhi & Ors.
(iv) that the testator had put his signature on the document of his own free will. It further held that ordinarily, when the evidence adduced in support of the Will is disinterested, satisfactory and sufficient to prove the sound and disposing state of mind of the testator and his signature as required by law, courts would be justified in making a finding in favour of the propounder. Such evidence would discharge the onus on the propounder to prove the essential facts. The Hon'ble Supreme Court further held that it is necessary to remove suspicious circumstances surrounding the execution of the Will.
22. Hon'ble Supreme Court of India in Jaswant Kaur vs Amrit Kaur & Ors : AIR 1977 SC 74 has discussed the law related to proving a will. It has held as under:
"There is a long line of decisions bearing on the nature and standard of evidence required to prove a will. Those decisions have been reviewed in an elaborate judgment of this Court in R. Venkatachala Iyengar v.B.N. Thirnmajamma & Others. (1) The Court, speaking through Gajendragadkar J., laid down in that case the following positions :--
"1. Stated generally, a will has to be proved like any other document, the test to be applied being the usual test of the satisfaction of the prudent mind in such matters. As in the ease of proof of other documents, so in the case of proof of wills, one cannot insist on proof with mathematical certainty. "2. Since section 63 of the Succession Act requires a will to be attested, it cannot be used as evidence until, as required by section 63 of the Evidence Act, one attesting witness at least has been called for the purpose of proving its execution, if there be an attesting witness alive and subject to the process of the court and capable of giving evidence."3. Unlike other documents, the will PC No. 5935/2016 Page 19 of 47 Dr. Yadvender Singh /DJ-02/South/Saket/ND/30.09.2024 Shanta Rani Vs. Govt. Of NCT of Delhi & Ors.
speaks from the death of the testator and therefore the maker of the will is never available for deposing as to the circumstances in which the will came to be executed.
"This aspect introduces an element of solemnity in the decision of the question whether the document propounded is proved to be the last will and testament of the testator. Normally, the onus which lies on the propounder can be taken to be discharged on proof of the essential facts which go into the making of the will. "4. Cases in which the execution of the will is surround- ed by suspicious circumstances stand on a different footing. A shaky signature, a feeble mind, an unfair and unjust disposition of property, the propounder himself taking a leading part in the making of the will under which he receives a substantial benefit and such other circumstances raise suspicion about the execution of the will. That suspicion cannot be removed by the mere assertion of the propounder that the will bears the signature of the testator or that the testator was in a sound and disposing state of mind and memory at the time when the will was made, or that those like the wife and children of the testator who would normally receive their due share in his estate were disinherited because the testator might have had his own reasons for excluding them. The presence of suspicious circumstances makes the initial onus heavier and therefore, in cases where the circumstances attendant upon the execution of the will excite the suspicion of the court, the propounder must remove all legitimate suspicions before the document can be accepted as the last will of the testator. "5. It is in connection with wills, the execution of which is surrounded by suspicious circumstance that the test of satisfaction of the judicial conscience has been evolved. That test emphasises that in determining the question as to whether an instrument produced before the court is the last will of the testator, the court is called upon to decide a solemn question and by reason of suspicious circumstances the court has to be satisfied fully that the will has been validly executed by the testator. "6. If a caveator alleges fraud, undue influence, coercion etc. in regard to the execution of the will, such pleas have to be proved by him, but even in the absence of such pleas, the very circumstances surrounding the execution' of the will may raise a doubt as to whether the testator was acting of his own free will. And then it is a part of the initial onus of the propounder to remove all reasonable PC No. 5935/2016 Page 20 of 47 Dr. Yadvender Singh /DJ-02/South/Saket/ND/30.09.2024 Shanta Rani Vs. Govt. Of NCT of Delhi & Ors.
doubts in the matter."
23. In Shashi Kumar Banerjee & Ors vs Subodh Kumar Banerjee Since deceased through LRs.:AIR 1964 SC 529, Hon'ble Supreme Court has discussed the law relating to the Will to be proved. Hon'ble Supreme Court has held as under:-
"5. The principles which govern the proving of a will are well settled; (see H. Venkatachala Iyengar v. B. N. Thimmajamma, 1959 (S1) SCR 426 : 1959 AIR(SC) 443) and Rani Purniama Devi v. Khagendra Narayan Dev, 1962 (3) SCR 195 : 1962 AIR(SC)
567). The mode of proving a will does not ordinarily differ from that of proving any other document except as to the special requirement of attestation prescribed in the case of a will by S. 63 of the Indian Succession Act. The onus of proving the will is on the propounder and in the absence of suspicious circumstances surrounding the execution of the will, proof of testamentary capacity and the signature of the testator as required by law is sufficient to discharge the onus. Where however there are suspicious circumstances, the onus is on the propounder to explain them to the satisfaction of the Court before the Court accepts the will as genuine. Where the caveator alleges undue influence, fraud and coercion, the onus is on him to prove the same. Even where there are no. such pleas but the circumstances give rise to doubts, it is for the propounder to satisfy the conscience of the Court. The suspicious circumstances may be as to genuineness of the signature of the testator, the condition of the testator's mind, the dispositions made in the will being unnatural improbable or unfair in the light of relevant circumstances or there might be other indication in the will to show that the testator's mind was not free. In such a case the Court would naturally expect that all legitimate suspicion should be completely removed before the document is accepted as the last will of the testator. If the propounder himself takes part in the execution of the will which confers a substantial benefit on him, that is also a circumstance to be taken into account, and the propounder is required to remove the doubts by clear and satisfactory evidence. If the propounder succeeds in removing the suspicious circumstances the Court would grant probate, even if PC No. 5935/2016 Page 21 of 47 Dr. Yadvender Singh /DJ-02/South/Saket/ND/30.09.2024 Shanta Rani Vs. Govt. Of NCT of Delhi & Ors.
the will might be unnatural and might cut off wholly or in part near relations. It is in the light of these settled principles that we have to consider whether the appellants have succeeded in establishing that the will was duly executed and attested."
24. Similarly in Navneet Lal Alias Rangi vs Gokul and Others : AIR 1976 SC 794, Hon'ble Supreme Court of India has laid down the following Principles/Guidelines:-
"From the earlier decisions of this Court the following principles, inter alia, are well established:-
"(1) In construing a document whether in English or in vernacular the fundamental rule is to ascertain the intention from the words used; the surrounding circumstances are to be considered; but that is only for the purpose of finding out the intended meaning of the words which have actually been employed. [Ram Gopal v. Nand Lal and others(1)].
"(2) In construing the language of the will the court is entitled to put itself into the testator's armchair [Venkata Narasimha v.
Parthasarathy(2)] and is bound to bear in mind also other matters than merely the words used. It must consider the surrounding circumstances, the position of the testator, his family relationship, the probability that he would use words in a particular sense....but all this is solely as an aid to arriving at a right construction of the will, and to ascertain the meaning of its language when used by that particular testator in that document. [Venkata Narasimha's case supra and Gnanambal Ammal v. T. Raju Ayyar and Others(1)].
"(3) The true intention of the testator has to be gathered not by attaching importance to isolated expressions but by reading the will as a whole with all its provisions and ignoring none of them as redundant or contradictory [Raj Bajrang Bahadur Singh v. Thakurain Bakhtraj Kuer(2)].
"(4) The court must accept, if possible, such construction as would give to every expression some effect rather than that which would render any of the expression inoperative. The court will look at the circumstances under which the testator makes his will, such as the state of his property, of his family and the like. Where apparently PC No. 5935/2016 Page 22 of 47 Dr. Yadvender Singh /DJ-02/South/Saket/ND/30.09.2024 Shanta Rani Vs. Govt. Of NCT of Delhi & Ors.
conflicting dispositions can be reconciled by giving full effect to every word used in a document, such a construction should be accepted instead of a construction which would have the effect of cutting down the clear meaning of the words used by the testator. Further, where one of the two reasonable constructions would lead to intestacy, that should be discarded in favour of a construction which does not create any such hiatus. [Paerey Lal v. Rameshwar Das(3)].
"(5) It is one of the cardinal principles of construction of wills that to the extent that it is legally possible effect should be given to every disposition contained in the will unless the law prevents effect being given to it, Of course, if there are two repugnant provisions conferring successive interests, if the first interest created is valid the subsequent interest cannot take effect but a Court of construction will proceed to the farthest extent to avoid repugnancy, so that effect could be given as far as possible to every testamentary intention contained in the will. [Ramachandra Shenoy and Another v. Mrs. Hilda Brite and Other(4)]..."
25. Sections 68 of the Evidence Act, which relates to proof of documents required by law to be attested, reads as under:
"68. Proof of execution of document required by law to be attested.
--If a document is required by law to be attested, it shall not be used as evidence until one attesting witness at least has been called for the purpose of proving its execution, if there be an attesting witness alive, and subject to the process of the Court and capable of giving evidence: Provided that it shall not be necessary to call an attesting witness in proof of the execution of any document, not being a will, which has been registered in accordance with the provisions of the Indian Registration Act, 1908 (16 of 1908), unless its execution by the person by whom it purports to have been executed is specifically denied.
26. It is also settled position of law that the jurisdiction of a probate Court is limited only to consider the genuineness of a Will. A question of title arising under the act cannot be gone PC No. 5935/2016 Page 23 of 47 Dr. Yadvender Singh /DJ-02/South/Saket/ND/30.09.2024 Shanta Rani Vs. Govt. Of NCT of Delhi & Ors.
into the proceedings and construction of a Will relating to the right, title and interest of any other person is beyond the domain of the Probate Court. Hon'ble Supreme Court of India in judgment titled Kanwarjit Singh Dhillon Vs. Hardayal Singh Dhillon & Ors. Civil Appeal No. 4890/2007 decided on 12.10.2007, while relying upon the judgments titled as CHeeranjilal Shrilal Goenka Vs. Jasjit Singh & Ors. (1993) 2 SCC 507 has held that the Court of probate is only concerned with the question as to whether the document put forward as the last Will and testament of a deceased person was duly executed and attested in accordance with law and whether at the time of such execution, the testator had sound disposing mind. The question whether a particular bequest is good or bad is not within the purview of the Probate Court. Therefore, the only issue in probate proceedings relates to the genuineness and due execution of the Will.
27. The petitioner's narrative is that the registered Will dated 25.03.1997 Ex. PW-1/1 in her favour is the last valid testament executed by Late Smt. Krishna with respect to the bequeathed property. The testatrix is petitioner's mother. The testatrix expired on 26.07.2011 leaving behind her daughter (petitioner herein), respondent no. 2 (son) and respondent no. 3 (wife of testatrix's deceased son Sh. M.L. Arora). Subsequently through PC No. 5935/2016 Page 24 of 47 Dr. Yadvender Singh /DJ-02/South/Saket/ND/30.09.2024 Shanta Rani Vs. Govt. Of NCT of Delhi & Ors.
application u/o I rule 10 CPC respondents no. 4 to 9 were impleaded, as initially LRs of two of the testratrix's children were not made the parties in the present matter by the petitioner. Respondents no. 4, 5, 6 & 7 are the class-I legal heirs of Ms. Asha Lalwani (testatrix's daughter, who expired in the year 2007) and respondents no. 8 & 9 are class-I legal heirs (daughters) of Sh. M.L. Arora (testatrix's son, who expired on 06.09.2011). Respondent no. 2 gave his no objection statement in favour of petitioner on 25.05.2012. Respondents no. 4, 5, 6 gave their no objection statement in favour of petitioner on 29.08.2013. Respondents no. 1 & 7 were proceeded ex-parte vide order dated 30.09.2014. Through the said Will, petitioner was appointed its beneficiary, administrator and executor. The petition was also verified by Sh. Praveen Kumar, who is one of the attesting witness of the Will.
28. Objections on behalf of respondent no. 3 was filed on 19.10.2012. Respondents no. 8 & 9 were allowed to adopt the objections filed by respondents no. 3 vide order dated 10.07.2014. Respondent no. 3 objected the Will on the ground of its genuiness and other suspicious circumstances.
29. Petitioner filed replication to the objections of respondent no. 3 and denied all the allegations made in the objections.
30. It is the duty of the propounder of the Will to prove the PC No. 5935/2016 Page 25 of 47 Dr. Yadvender Singh /DJ-02/South/Saket/ND/30.09.2024 Shanta Rani Vs. Govt. Of NCT of Delhi & Ors.
Will in question in accordance with the law. Petitioner examined herself as PW-1. She examined PW-3 and PW-5 being attesting witnesses of the Will. She examined her brother/ respondent no. 2 as PW-2, who deposed in her favour. She examined one official witness from Sub-Registrar-V Mehrauli, New Delhi, who brought summoned record pertaining to registered Will Ex. PW-1/1. The petitioner also examined her husband Sh. Gulshan Kumar as PW-6 to prove one alleged affidavit Ex. PW-1/DX1 for proving the alleged fact of receiving of Rs. 6,00,000/- by Late Sh. Manohar Lal Arora (husband of respondent no. 3) from testatrix late Smt. Krishna Arora for purchase of a new house on 29.07.2004.
31. On identification of signatures of testatrix and attesting witnesses on the Will -
PW-3 being attesting witness of the Will Ex. PW-1/1 deposed through his affidavit of evidence Ex. PW-3/A, wherein at para no. 2, 3 & 4 the attestation of the will Ex. PW-1/1 has been mentioned. Deposition regarding registration of the Will is mentioned in para 5 of the affidavit. During his examination- in-chief, he identified his signatures at point A on the Will. However, no efforts to identify the testatrix's signatures on the Will were made by PW-3 in his evidence. PW-5 tendered his evidence by way of affidavit Ex. PW-5/A, wherein at para no.
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2, 3 & 4 attestation of the Will Ex. PW-1/1 has been mentioned and the deposition regarding registration of Will is mentioned in para no. 5 of the affidavit. Any efforts to identify testatrix's signatures on the Will were also not made by PW-5 in his evidence.
32. During their cross-examination also neither the attesting witness PW-3 nor PW-5 made any effort to identify the signature of testatrix Late Smt. Krishna on the Will Ex. PW-1/1. Moreover, apart from the attesting witnesses PW-3 & PW-5, the remaining witnesses also did not make any effort to identify the signatures of testatrix Late Smt. Krishna on the Will Ex. PW- 1/1. They were also not asked to identify the signatures of testatrix Smt. Krishna on the Will Ex. PW-1/1. Accordingly, signatures of the testatrix Late Smt. Krishna remained unidentified on the Will Ex. PW-1/1.
33. As per mandate of clause (c) of Section 63 of the Indian Succession Act, 1925, the Will is required to be attested by two or more witnesses, each of whom should have seen the testator sign or put his mark on the Will or should have seen other person sign the Will in his presence and by the direction of the testator, or should have received from the testator a personal acknowledgment of his signature or mark or the signature of some other person. However, no particular form of attestation PC No. 5935/2016 Page 27 of 47 Dr. Yadvender Singh /DJ-02/South/Saket/ND/30.09.2024 Shanta Rani Vs. Govt. Of NCT of Delhi & Ors.
is necessary but the attesting witness during its evidence before the court is expected to identify the signatures of the testator in order to prove its execution. To prove the execution of the Will, the valid attestation will have to be proved by the propounder of the Will. A natural question arises that when opportunity to examine both the attesting witnesses was available with the petitioner, then why the testator's signatures on the Will Ex. PW-1/1 were not got identified at the time of their respective examination. Such non identification of testatrix's signatures on the Will creates a suspicion on the valid execution of the Will.
34. Perusal of the disputed Will framed the following features:-
It was allegedly made on 25.03.1997, as recorded in the first paragraph. The Will is only two pages in length. It was scribed in English and the testatrix Smt. Krishna affixed her signatures as Krishna in Hindi on each page. However, no efforts were made by any of the petitioner's witnesses for identification of her signatures on any of the page. The attesting witnesses' signatures are not found on the first page. On the second page, the signatures of Krishna and attesting witnesses bear at the end of the document. But the placement of the attesting witnesses' signatures is not consistent as one PC No. 5935/2016 Page 28 of 47 Dr. Yadvender Singh /DJ-02/South/Saket/ND/30.09.2024 Shanta Rani Vs. Govt. Of NCT of Delhi & Ors.
signed above his name (Praveen Kumar) while the other Ashok Kumar Gupta signed in the left side of rubber stamp of his name. The rubber stamp even does not disclose about his address or enrollment number. One original document Ex. PW- 1/3 (conveyance deed) was also filed by the petitioner. This document also bears the signature and stamp of Ashok Kumar Gupta on the last page. During his cross-examination the photocopy of the same conveyance deed was put to Sh. Ashok Kumar Gupta/ PW-5 and it was exhibited as Ex. PW-4/2, to which he answered that he had drafted, typed and attested this document. This document was put to him to check his veracity to his claim that whatever document is drafted by him, the document bears his name duly typed and the document which he does not drafted and merely signs as a attesting witness, bears rubber stamp of his name. He claimed so during his cross-examination dated 09.06.2017, when a specific question was put to him that "How do you distinguish a document drafted by you from a document drafted by somebody else?"
When we compare document Ex. PW-4/2 with Will Ex. PW- 1/1 then signatures of PW-5 on document Ex. PW-4/2 at point A appears to be made in the same fashion as at point C on the Will Ex. PW-1/1. Admittedly, the document Ex. PW-4/2 was drafted and typed by him. The document Ex. PW-4/2 also bears PC No. 5935/2016 Page 29 of 47 Dr. Yadvender Singh /DJ-02/South/Saket/ND/30.09.2024 Shanta Rani Vs. Govt. Of NCT of Delhi & Ors.
signatures and details of attesting witnesses namely Praveen Kumar and Kamal Arora on its last page at the specified place. The rubber stamp and signature of Ashok Kumar Gupta on this document is also on the last page but not at the place of witnesses but below the names and signatures of the attesting witnesses after leaving some gap. When the document was already attested by two witnesses then three witnesses were not required to attest the document, so apart from the admission of Ashok Kumar Gupta that he signed this document in the capacity of drafter, on the basis of this observation also it can safely be concluded that document Ex. PW-4/2 was stamped and signed by Ashok Kumar Gupta in the capacity of its drafter. On the Will in question in the present case, the last page of the Will shows serial no. 1 & 2 at the space where the word 'witness' has been written. However, the space against both the serial numbers has been filled with the details and signatures of only single witness i.e. Praveen Kumar. The stamp and signatures of Ashok Kumar Gupta/ PW5 are at bottom of the last page below the details of the first witness after leaving the similar gap as in the document Ex. PW-4/2. It is also the case of Ashok Kumar Gupta/ PW-5 that he had never met the testatrix prior to the date of execution of the Will i.e. 25.03.1997. It is also admitted position of PW-5 that he was PC No. 5935/2016 Page 30 of 47 Dr. Yadvender Singh /DJ-02/South/Saket/ND/30.09.2024 Shanta Rani Vs. Govt. Of NCT of Delhi & Ors.
practicing at the Sub-Registrar-V office, Delhi, where the present Will was got registered and there he was working as a drafter of legal papers like Will, GPA, sale deed etc. However, the PW-5 categorically answered that the Will Ex. PW-1/1 was not drafted by him and he claimed that he signed the present Will as an attesting witness, however, the abovesaid discussed facts creates doubt regarding the signature of PW-5 at point C on Ex. PW-1/1 in the capacity of an attesting witness. This attestation cannot be safely relied upon an an attestation of attesting witness. If attestation of PW-5/ Ashok Kumar Gupta is not considered to be made by attesting witness then the Will left attested by with only one attesting witness i.e. Praveen Kumar and even on this ground of non compliance of mandatory requirement of Section 63 of Indian Succession Act, 1925 that the Will shall be attested by two or more witnesses, the present petition may be dismissed.
35. Effect of no prior acquaintance of the attesting witness with the testatrix -
Moreover, a person who has no prior acquaintance with the testator or who does not have the information about the identity of the testator, is not competent witness.
Reliance is placed on Janardhanan vs. Jayachandran and Ors., 2019(2) CCC 161 as under:-
PC No. 5935/2016 Page 31 of 47 Dr. Yadvender Singh /DJ-02/South/Saket/ND/30.09.2024Shanta Rani Vs. Govt. Of NCT of Delhi & Ors.
5. ...Necessarily, the person who stand as attesting witness should possess the necessary animus to stand as an attesting witness to a "Will or Codicil". There should be an harmonious interpretation to clauses (a), (b) and (c) of Section 63 of Indian Succession Act to give full effect to the legislative intention in the matter of a Will or Codicil, which would come into question and come into play only after the death of the testator/testatrix. Necessarily, the attesting person should know the identity of the testator while standing as an attesting witness. The persons who were signed on a Will as attesting witnesses without knowing the identity of the testator/testatrix and without ascertaining their identity cannot be a sufficient compliance under Section 63 (c) of Indian Succession Act. The person who is having no prior acquaintance with the testator/testatrix, having no information regarding their identity, are incompetent to stand as attesting witness in compliance of Section 63 (c) of Indian Succession Act.
As discussed above, PW-5 during his cross examination answered that he had never met the testatrix prior to 25.03.1997 i.e. date of execution of the Will. As PW-5 did not have any prior acquaintance with the testatrix, so in view of the settled law he is incompetent to stand as attesting witness to the Will Ex. PW-1/1.
36. In view of the abovesaid discussion, material on record and analysis of examination of the petitioner's witnesses, I am of the considered opinion that petitioner failed to prove the proper attestation on the Will Ex. PW-1/1.
37. On sound disposing mind and free will of the testatrix -
In H. Venkatachala Iyengar v. B.N. Thimmajamma and PC No. 5935/2016 Page 32 of 47 Dr. Yadvender Singh /DJ-02/South/Saket/ND/30.09.2024 Shanta Rani Vs. Govt. Of NCT of Delhi & Ors.
Others:AIR 1959 SC 443 Hon'ble Supreme Court of India has observed that propounder to succeed and prove the Will is required to prove by satisfactory evidence that (i) the Will was signed by the testator; (ii) the testator at the time was in a sound and disposing state of mind; (iii) the testator understood the nature and effect of the dispositions; and (iv) that the testator had put his signatures on the document of his own free will.
It further held that ordinarily, when the evidence adduced in support of the Will is disinterested, satisfactory and sufficient to prove the sound and disposing state of mind of the testator and his signatures as required by law, courts would be justified in making a finding in favour of the propounder. Such evidence would discharge the onus on the propounder to prove the essential facts. The Hon'ble Supreme Court further held that it is necessary to remove suspicious circumstances surrounding the execution of the Will.
38. The petitioner examined PW-3 and PW-5 in the capacity of attesting witnesses of the Will Ex. PW-1/1. Both the witnesses have mentioned in para no. 3 & 4 of their respective affidavits of evidence regarding the testatrix's sound state of mind, her understanding the contents of the said Will and signing the Will without any pressure, coercion or undue influence at the time of its execution. During his cross-
PC No. 5935/2016 Page 33 of 47 Dr. Yadvender Singh /DJ-02/South/Saket/ND/30.09.2024Shanta Rani Vs. Govt. Of NCT of Delhi & Ors.
examination dated 02.06.2018, PW-3 answered that the Will Ex. PW-1/1 was not read out to him but the same was read out by Sh. Ashok Gupta, Advocate (PW-5) to the testatrix. However, PW-5 during his cross-examination dated 09.06.2017 was not sure about the fact that who read out the Will to the testatrix, while answering the question i.e. "who had read out the will to her?" by saying that "either I did or Mr. Praveen Kumar, the witness (PW-3)". So both the witnesses were not sure about the person who read out the Will to the testatrix.
39. During his cross-examination dated 09.06.2017, PW-5 answered that though the Will was written in English but explained in Hindi. However, it is admitted position of PW-5 himself that he is not a drafter of the Will. He answered that he is merely an attesting witness of the Will. He also answered that the Will was read out to her and she was made to understand the contents of the Will and it was thereafter that she affixed her signatures. However, he was also not sure about the person who read out the Will to the testatrix. So his evidence on this point can not be relied upon in absence of any corroborative evidence regarding the same.
40. Perusal of Will Ex. PW-1/1 shows that the signature of the testatrix were in Hindi language, however the Will is in English language. During her examination dated 07.04.2016, PC No. 5935/2016 Page 34 of 47 Dr. Yadvender Singh /DJ-02/South/Saket/ND/30.09.2024 Shanta Rani Vs. Govt. Of NCT of Delhi & Ors.
PW-1 answered that her mother (testatrix) was not having any formal education but she was able to read Hindi and also able to sign in Hindi. She answered that her mother used to work as maid in nursery school or to do domestic work in other's houses. When it is admitted position of the petitioner itself that the testatrix was only able to read Hindi language and sign in Hindi then a natural question arises that why the Will Ex. PW- 1/1 was in English language. Moreover, there was also no evidence on record to show that the Will was prepared on the dictation of the testatrix and that contents of the Will signed by the testatrix were read over and explained to her in language known to her. The Will Ex. PW-1/1 is also silent about the same. The Will itself does not show anywhere that the Will was signed by the testatrix after the Will was read over to her in vernacular language. These circumstances creates doubt on the genuineness of the Will.
41. In Pratap Singh & Anr. Vs. State & Anr. decided on 12.08.2010 by the Hon'ble Double Bench of Delhi High Court in FAO (OS) No. 181 of 2009, it was observed that when the Will was in English language whereas signatures of the testator were in Urdu language and there was no evidence on record to show that the Will was prepared on the dictation of the testator and that contents of the Will signed by the testator were read PC No. 5935/2016 Page 35 of 47 Dr. Yadvender Singh /DJ-02/South/Saket/ND/30.09.2024 Shanta Rani Vs. Govt. Of NCT of Delhi & Ors.
over and explained to him in Urdu or any language known to him, then such circumstance castigates the genuineness of the Will. These facts observed in this case on the point whether Will was prepared on the dictation of the testator or not.
42. On asking the question that what is the basis of his statement that testatrix Smt. Krishna had of sound state of mind at the time of execution of the Will Ex. PW-1/1 during his cross-examination dated 09.06.2017, he answered that he saw her getting down from the car, coming to the office of sub- registrar walking on her own and she waited for her turn. Apart from this observation, he did not tell anything by which he concluded that at the time of execution of the Will the testatrix was in sound state of mind. It is also admitted position of PW-5 that he did not met the testatrix prior to 25.03.1997 i.e. the alleged date of execution of the Will. So only by observing a person while getting down from the car, coming to the office of sub-registrar walking on her own and while waiting for her turn, it cannot be said that the person was of sound state of mind for the purpose of execution of the Will. Moreover, when during his cross-examination on 12.01.2018, he was asked to tell as to from which car the testatrix got down on the date of alleged Will, he answered that he was not in a position to tell the same. It further creates doubt on the fact whether PW-5 had met/ saw PC No. 5935/2016 Page 36 of 47 Dr. Yadvender Singh /DJ-02/South/Saket/ND/30.09.2024 Shanta Rani Vs. Govt. Of NCT of Delhi & Ors.
the testatrix on the alleged date of execution of the Will.
43. Effect of registration of the Will to prove its valid execution -
Much emphasis has been laid down by the petitioner that the alleged Will is a registered Will. However, registration of a Will is not mandatory. Hon'ble High Court in Pratap Singh & Anr. (supra) observed that:
"It is well settled, merely because the Will is a "registered Will", it is no assurance that the same is genuine and validly executed document with a sound disposition of mind and free Will."
Hon'ble Apex court in Dhani Sharma (died) through LRs & Ors. vs. Shiv Singh, Civil Appeal no. 8172/2009 (06.10.2023) held that it is well settled that mere registration would not sanctify a document by attaching to it an irrebuttable presumption of genuineness. The observations of this Court in "Rani Purnima Debi and another vs. Kumar Khagendra Narayan Deb and another", which were referred to by the Himachal Pradesh High Court, are of guidance in this regard and are worthy of extraction. These observations read as under:
"There is no doubt that if a Will has been registered, that is a circumstance which may, having regard to the circumstances, prove its genuineness. But the mere fact that a Will is registered will not by itself be sufficient to dispel all suspicion regarding it where suspicion exists, without submitting the evidence of registration to a close examination. If the evidence as to registration on a close examination reveals that the registration was made in such a manner PC No. 5935/2016 Page 37 of 47 Dr. Yadvender Singh /DJ-02/South/Saket/ND/30.09.2024 Shanta Rani Vs. Govt. Of NCT of Delhi & Ors.
that it was brought home to the testator that the document of which he was admitting execution was a Will disposing of his property and thereafter he admitted its execution and signed it in token thereof, the registration will dispel the doubt as to the genuineness of the Will. But if the evidence as to registration shows that it was done in a perfunctory manner, that the officer registering the Will did not read it over to the testator or did not bring home to him that he was admitting the execution of a Will or did not satisfy himself in some other way (as, for example, by seeing the testator reading the Will) that the testator knew that it was a Will the execution of which he was admitting, the fact that the Will was registered would not be of much value. It is not unknown that registration may take place without the executant really knowing what he was registering. Law reports are full of cases in which registered Wills have not been acted upon............ Therefore, the mere fact of registration may not by itself be enough to dispel all suspicion that may attach to the execution and attestation of a Will; though the fact that there has been registration would be an important circumstance in favour of the Will being genuine if the evidence as to registration establishes that the testator admitted the execution of the Will after knowing that it was a Will the execution of which he was admitting."
Hon'ble Apex court in Jagdish Chand Sharma vs. Narain Singh Saini & Ors. In Civil Appeal no. 4181-4182 of 2015, while deciding the issue if signatures of persons appearing at the foot of hte endorsement of registration can be presumed to have been made as attesting witness or not observed that:
"34. In Bhaiya Guruji Dutt Singh (supra), the testimony of the two attesting witnesses was found wanting in credibility for which the propounder did fall back on the admission of the testator about the execution of the Will involved at the time of registration in presence of two persons Mr. Mahadeo Prasad and Mr. Nageshur, who also had appended their signatures at the foot of the endorsement of the Sub Registrar. These signatures were contended to be enough to prove due attestation of the Will. It was held that mere signatures of these two persons appearing at the foot of the endorsement of PC No. 5935/2016 Page 38 of 47 Dr. Yadvender Singh /DJ-02/South/Saket/ND/30.09.2024 Shanta Rani Vs. Govt. Of NCT of Delhi & Ors.
registration could not be presumed to have been made as attesting witnesses or in the capacity of attesting witnesses and absence of animo attestandi was underlined".
Accordingly the fact of registration of Will Ex. PW-1/1 is of no help for the petitioner in the present case to prove valid attestation of the Will.
44. Hon'ble apex court in Jagdish Chand Sharma (supra) observed that:-
37. In Jaswant Kumar (supra) this Court held that suspicion generated by the distrustful circumstances cannot be removed by the mere assertion of the propounder that the Will bears the signature of the testator or that the testator was in a sound and disposing state of mind and memory when the Will was made or that those like the wife and children of the testator, who would normally receive their due share in the estate, were disinherited because the testator might have had seen reasons for excluding them. It was underscored that it was obligatory for the propounder to remove all legitimate suspicions before the document could be accepted as the last Will of the testator.
45. Participation of propounder in its execution -
During his cross-examination dated 09.06.2017, PW-5, attesting witness of the Will answered that the another attesting witness namely Mr. Pradeep Kumar had introduced petitioners brother namely Mr. Kamal Arora/ PW-2 and petitoner Ms. Shanta Rani to him. He further answered that Kamal Arora and Shanta Rani were introduced to him by Mr. Praveen Kumar at the time of execution of the Will. He answered that Praveen PC No. 5935/2016 Page 39 of 47 Dr. Yadvender Singh /DJ-02/South/Saket/ND/30.09.2024 Shanta Rani Vs. Govt. Of NCT of Delhi & Ors.
Kumar/ PW-3 is known to him as Praveen Kumar is in business of property dealing. He answered that he was an advocate drafting legal papers and doing practice at the ofice of Sub- Registrar-V & III, Delhi for the last 30 years. He also answered that he had witnessed many documents in normal routine along with Mr. Praveen Kumar/ PW-3 other than the Will in question. He also answered that Mr. Kamal Arora/ PW-2 and Shanta Rani/ petitioner had contacted him as client about 10 days prior to drafting of the Will at his office at C-125, Daya Nand Colony, Lajpat Nagar-IV, New Delhi. He answered that he did not remember that how many time he had met Mr. Kamal Arora and Ms. Shanta Rani after drafting of the Will. It shows that the propounder took active participation in execution of the Will. It creates doubt on the valid and legal execution of the Will.
46. Other suspicious circumstances -
However, it is not mandatory that the details of the complete property of the testatrix must found mentions in the Will. However, generally when a Will is executed, the testator metnions regarding all of his properties and belongings. Generally not even the bequeathed properties and belongings but also the properties and belongings left out to be bequeathed are also mentioned by the testator in the Will. However, the present Will was executed only to bequeath the part of the PC No. 5935/2016 Page 40 of 47 Dr. Yadvender Singh /DJ-02/South/Saket/ND/30.09.2024 Shanta Rani Vs. Govt. Of NCT of Delhi & Ors.
testatrix's property in favour of the petitioner. Admittedly, the testatrix Smt. Krishna also executed a subsequent Will regarding the entire basement floor, ground floor and third floor of the same property number. This lacuna creates doubt on the genuineness of the Will when it clubs together with one another fact i.e. non mentoining about the legal heirs, who were not made beneficiary of the Will. However, it is also a settled law that the execution of the Will cannot be questioned only due to the non inclusion of all the legal heirs as a beneficiary. But it is also settled law that such kind of exclusion creates doubt when there are other suspicious circumstances surrounding the execution of the Will. Here not only all the legal heirs except one were not made beneficiary of the Will but also no ground for their exclusion was mentioned in the Will. When we take all these facts together then it creates suspicious circumstances around the valid execution of the Will in question.
47. Non mentioning of the knowledge about existence of the Will -
The petitioner or any other witnesses nowhere mentioned how the petitioner came to know about existence of the present Will. Perusal of affidavit Ex. PW-1/A of the petitioner shows that at para 14 she deposed that her mother time and again expressed that she would give her a part of the property before PC No. 5935/2016 Page 41 of 47 Dr. Yadvender Singh /DJ-02/South/Saket/ND/30.09.2024 Shanta Rani Vs. Govt. Of NCT of Delhi & Ors.
she dies. She also deposed that her mother consulted lawyers for preparation of Will dated 25.03.1997 and her mother was well aware of the contents of the Will. She also deposed that her mother had revealed to her in her lifetime that she prepared a Will in her favour and thereby bequeathed entire first floor of the property. However, during her cross-examination, she answered that within a week of death of her mother she came to know about the Will dated 25.03.1997 vide which her mother bequeathed first floor of the suit property in her favour. During her cross-examination she merely answered that during the lifetime, her mother used to tell her that she would be giving some property to her but she saw the Will after the death of her mother. The deposition in affidavit and the response in cross- examination regarding her knowledge about the Will are self contradictory. If she had not seen the document during the lifetime of her mother and during her lifetime her mother only used to tell orally regarding beqeathing some property in her favour then how can the para 10 of the affidavit be said to be correct, where the petitioner categorically deposed that the testatrix had revealed to her in her lifetime that she had prepared a Will in her favour thereby bequeathing immovable property comprising of the entire first floor of the suit property.
48. During her cross-examination, she also answered that she PC No. 5935/2016 Page 42 of 47 Dr. Yadvender Singh /DJ-02/South/Saket/ND/30.09.2024 Shanta Rani Vs. Govt. Of NCT of Delhi & Ors.
did not remember on the basis of which source of knowledge, she had stated in para 5 of her affidavit Ex. PW-1/A that the Will was signed by the deceased in the presence of witnesses, whose name and signature appears at the foot of the Will and that the witnesses have signed the said Will in the presence of the testatrix. Accordingly, the para 5 of the affidavit also cannot be said to be correct because when no source of knowledge about the execution of the Will was disclosed by the petitioner and when admittedly she also not witnessed its execution then she becomes stranger to its execution and can't be allowed to depose about the procedure followed at the time of execution of the Will.
49. All these circumstances regarding petitioner's such knowledge further creates doubt on the genuiness of the Will.
50. PW-2, who is petitioner's brother and allegedly is beneficiary of the remaining of the property of the testatrix through a separate Will, also answered during his cross- examination dated 04.01.2016 that he was not aware as to who drafted the Will in question and he came to know about the Will in question after passing away of his mother. Accordingly, the para no. 7 of his affidavit Ex. PW-2/A is also not correct, where he says that the Will was signed by his mother in the presence of witnesses whose name and signature appears at the foot of PC No. 5935/2016 Page 43 of 47 Dr. Yadvender Singh /DJ-02/South/Saket/ND/30.09.2024 Shanta Rani Vs. Govt. Of NCT of Delhi & Ors.
the Will and the witnesses had signed the said Will in the presence of the testatrix.
51. Petitioner as well as PW-2 in their respective affidavit of evidences also deposed that testatrix gave money to the petitoner's brother Mr. M.L. Arora, husband of respondent no. 3 to purchase one another property as she was not in a good relation with M.L. Arora's wife. To prove this contention, the petitioner also relied upon a document Ex. PW-1/DX1, which was produced and exhibited by the petitioner during her cross- examination as PW-1 on 08.10.2016. To prove the document, petitioner also examined her husband Sh. Gulshan Kumar as PW-6. This document is an affidavit dated 29.07.2004 which shows affirmation of M.L. Arora regarding receiving of Rs. 6,00,000/- from his mother Smt. Krishna (testatrix herein) for purchase of a new house. It is also metnioned in the affidavit that with receipt of Rs. 6,00,000/- he had vacated the premises (B-99, Third Floor, Dayanand Colony) occupied by him and shifted to a new purchased house. Witness PW-6 answered that initially he was not aware where the affidavit Ex. PW-1/DX1 was kept but after filing of the present case he came to know that the affidavit was given by his mother-in-law to his wife. He answered that he did not know that where this affidavit was kept by his wife/ petitioner herein. He answered that at that PC No. 5935/2016 Page 44 of 47 Dr. Yadvender Singh /DJ-02/South/Saket/ND/30.09.2024 Shanta Rani Vs. Govt. Of NCT of Delhi & Ors.
time when this document was signed in addition to him the testatrix herein(late Smt. Krishna Arora), Renu (respondent no. 3 herein) and Mr. Manohar Lal (deceased son of testatrix) were present and no one else was present or sitting there. However, the petitioner answered during her cross-examination dated 08.10.2016 as PW-1 that all the family members i.e. testatrix, Renu (respondent no. 3), PW-6/ petitioner's husband (Gulshan Kumar), Manohar Lal, Kamal Arora/ petitioner's brother (respondent no. 2) and herself were present at the time the document in question was signed. The answers of both these witnesses are contradictory because as per PW-6 total four persons were present at the time of signing this document while total six persons were present at the time of signing of this document as per petitioner/ PW-1. It creates doubt on the genuineness of this document. Moreover, this document is not registered, which was required to be mandatorily registered as per law of Registration as vide this document Mr. M.L. Arora allegedly extinguished his right of the value of Rs. 100/- in immovable property. Even otherwise this document is of the year 2004 i.e. after the executon of the Will in question and this subsequent document executed after more than 7 years after the execution of the Will cannot be relied upon as an evidence for justification of keeping out M.L. Arora from the benefits of the PC No. 5935/2016 Page 45 of 47 Dr. Yadvender Singh /DJ-02/South/Saket/ND/30.09.2024 Shanta Rani Vs. Govt. Of NCT of Delhi & Ors.
Will or non mentioning of the reasons for not giving any benefit to him through the Will. Respondent no. 3 examined herself as RW-2 and respondent no. 9 examined herself as RW-1. During their respective evidences, both of them categorically denied the signatures of Sh. Manohar Lal on the document Ex. PW-1/DX1. Even the execution of this document was categorically denied by them. However, thereafter no further efforts were made by the petitioner to prove this document. The corroborative evidence of any handwriting expert could be led by the petitioner to prove this document. However, it was not done so by the petitioner due to the reasons best known to the petitioner. Accordingly, this document also cannot be relied upon in favour of the petitioner for the abovesaid justifications and all these circumstances further create doubt on the genuiness of the Will.
52. In view of the abovesaid discussion, material on record, analysis of examination of the petitioner's witnesses, I am of the considered opinion that the petitioner failed to prove the sound disposing state of mind, free will of the testatrix at the time of execution of the Will in question.
53. In view of the abovesaid finding on petitioner's failure to prove proper attestation of the Will and also to prove the sound disposing state of mind and free will of the testatrix at the time of execution of the Will and due to other suspicious PC No. 5935/2016 Page 46 of 47 Dr. Yadvender Singh /DJ-02/South/Saket/ND/30.09.2024 Shanta Rani Vs. Govt. Of NCT of Delhi & Ors.
circumstances as discussed above, I am of the considered opinion that petitioner failed to prove that Will dated 25.03.1997 is witnessed properly and Will in question is a genuine Will. Accordingly, issues no. 2 & 3 are decided against the petitioner.
Issue no. 1 Whether the petitioner is entitled for probate as per Will dated 25.03.1997? OPP
54. As issue no. 2 & 3 have already been decided against the petitioner, so petitioner is not entitled for grant of probate as per Will dated 25.03.1997 in her favour. Accordingly, issue no. 1 is also decided against the petitioner.
Issue no. 4 Relief.
55. In view of the findings given qua issues no. 1, 2 & 3, this petition is dismissed, leaving parties to bear their own costs.
56. The Will Ex. PW-1/1 shall remain part of judicial file, in terms of Section 294 of the Indian Succession Act, 1925. Pronounced in the open Court Digitally signed YADVENDER by YADVENDER on this 30th day of September 2024. SINGH SINGH Date: 2024.09.30 17:20:12 +0530 (DR. YADVENDER SINGH) DISTRICT JUDGE-02 SOUTH, SAKET COURTS, NEW DELHI.
PC No. 5935/2016 Page 47 of 47 Dr. Yadvender Singh /DJ-02/South/Saket/ND/30.09.2024